Ty Kerton v Dyer's Distribution

[2024] FWC 3376

[2024] FWC 3376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ty Kerton
v

Dyer’s Distribution

(U2024/11470)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 4 DECEMBER 2024

Application for an unfair dismissal remedy – application dismissed pursuant to section 587

1. On 25 September 2024, Mr Ty Kerton (Applicant) filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (Act) (Application).

1. The matter was allocated to my chambers on 11 November 2024. Prior to allocation, the natter was listed for staff conciliation on 31 October 2024. The conciliation did not proceed due to the Applicant’s non-attendance. Given that the conciliation did not proceed, an email was forwarded to the parties on the same day, advising that the conciliation did not go ahead, because the Applicant failed to join the online conciliation. He was requested to contact the Commission within 2 working days if he wanted the matter to proceed via a further conciliation. No response was received from the Applicant.

1. On 12 November 2024, a notice of listing for a Mention on 15 November 2024 was sent from my chambers, with the parties required to confirm their attendance by 4:00pm on 14 November 2024. No response was received from the Applicant.

1. The Mention proceeded on 15 November 2024 and the Applicant failed to attend. I indicated at the mention that I would issue directions for the Applicant to file material.

1. On 18 November 2024, I issued directions for the Applicant to file his material to support his application, by no later than 4.00 pm 27 November 2024 (Directions). My chambers emailed the parties attaching the Directions and advised the Applicant that unless he provides material in accordance with the Directions, I intend to dismiss the application pursuant to s.587(1)(c) of the Act.

1. The Applicant failed to file any material by 4.00 pm 27 November 2024 in accordance with the Directions or otherwise communicate with the Commission or my chambers.

1. No response has been received by the Applicant, despite multiple attempts by my chambers and the Commission to contact him.

Consideration

1. Section 587 of the Act sets out when the Commission may dismiss an application. It provides:

“587 Dismissing applications

(1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)      the application is not made in accordance with this Act; or

(b)      the application is frivolous or vexatious; or

(c)      the application has no reasonable prospects of success.

…

(2)  Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a)is frivolous or vexatious; or

(b)has no reasonable prospects of success.

(3)  The FWC may dismiss an application:

(a)on its own initiative; or

(b)on application.”

1. In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion. Accordingly, I consider section 587 confers a sufficiently broad discretion to allow an application under section 394 of the Act to be dismissed for want of prosecution by an applicant, including by non-compliance with directions or orders, and a repeated failure to provide a proper explanation for that non-compliance.

1. The Applicant has on multiple occasions failed to attend listings or file material as directed or required. Further, he has not communicated at any time with the Commission or my chambers, save for lodging the application. Having made the Application, it is incumbent on the Applicant to prosecute his claim. I consider the Commission has afforded ample opportunity to the Applicant to file material in support of the Application. Further, Mr Kerton was placed on notice of the consequences of his non- compliance and still failed to respond. I infer from these matters that the Applicant does not intend to file any material in support of his Application.

1. I consider that the Applicant has failed to prosecute the Application. Accordingly, I have determined to dismiss the Application for want of prosecution, pursuant to section 587 of the Act.

1. The Application is dismissed. An order to that effect will issue separately.

DEPUTY PRESIDENT

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